The First DACA Rescission Was Arbitrary and Capricious. Will the Next One Also Be?

by Michael Dorf

With President Trump's deadline rapidly approaching, negotiations and debate in Congress may or may not produce legislation protecting some or all Dreamers. Meanwhile, on Tuesday, a federal district judge in Brooklyn issued a preliminary injunction against the rescission of DACA. As the opinion repeatedly emphasized, the judge did not rule that the administration lacks the power to rescind DACA. Rather, the court held that the administration's stated rationale--that DACA is unconstitutional--was inadequate and contradicted the administration's decision to retain DACA in place for half a year. Thus, according to the ruling, the rescission was arbitrary and capricious in violation of the Administrative Procedure Act (APA). The administration can still rescind DACA, but before doing so, the relevant agency (here the Department of Homeland Security) must articulate a better reason.

Should Congress adopt a permanent fix to DACA in the coming days, the preliminary injunction will prove unimportant. But given deep divisions within and among the parties, that is hardly a sure thing. Accordingly, the ruling warrants careful study.

Despite the high stakes, the basic shape of the ruling by Judge Garaufis is fairly conventional. The APA subjects agency actions--including agency actions rescinding policies that the agency was under no obligation to adopt in the first place--to judicial review for arbitrariness and capriciousness. Sufficiently bad reasons for rescinding a policy can render the rescission arbitrary and capricious, even though the very same rescission could be accomplished if the agency gave better reasons.

The administration rescinded DACA because, it claimed, DACA was unconstitutional. However, Judge Garaufis argued, that's wrong. For one thing, Attorney General Sessions claimed that DACA shared the same constitutional flaw that the Fifth Circuit found in its 2015 ruling invalidating related programs known as DAPA and expanded DACA. Judge Garaufis noted that the Fifth Circuit did not base its ruling on a finding of unconstitutionality, so the Trump/Sessions rescission decision was based on a plain error of fact, and that alone suffices to invalidate it under the arbitrary-and-capricious standard of the APA.

Insofar as Sessions was implicitly endorsing the actual grounds for the Fifth Circuit ruling, Judge Garaufis registered two objections. First, he noted that DACA differs from DAPA and expanded DACA in some important respects. And second, to the extent that the Fifth Circuit rationale applies to DACA as well, Judge Garaufis simply disagreed with the Fifth Circuit. His job in undertaking APA review is to determine whether the administration rested its decision on an erroneous view of the law, and he thought that the Fifth Circuit's view was erroneous.

But wait. Even if the Fifth Circuit was wrong by the lights of Judge Garaufis, couldn't the administration have been legitimately worried that the Fifth Circuit approach would ultimately prevail? That certainly seems reasonable, given that the SCOTUS divided 4-4 on whether to affirm the Fifth Circuit, and we can guess that Justice Gorsuch would likely cast a fifth vote to affirm if the issue should arise again but this time with respect to DACA. Thus, shouldn't the administration have been allowed to rescind DACA based on what it argued was "litigation risk" of its invalidation? Judge Garaufis grudgingly allows that an agency decision based on litigation risk could be legitimate, but he says that litigation risk in fact was not the basis for the DACA rescission.

The judge says the same thing, more or less, about the administration's argument that it was entitled, as a matter of policy, to take a narrower view of its discretion to adopt under-enforcement policies than the courts will allow. The administration argued that it was entitled to make an "independent policy judgment" that the adoption or non-adoption of a program like DACA should be left to Congress. Here too, Judge Garaufis notes that this was not an actual basis for the Trump/Sessions rescission.

Thus, while the ruling by Judge Garaufis, if sustained on appeal and not superseded by legislation, provides temporary relief, it leaves Trump and Sessions a pretty clear path for reinstating the DACA rescission by having DHS do a little homework to document litigation risk and/or exercise actual independent policy judgment. Given Trump's occasional statements to the effect that he cares about the Dreamers, there might be some political obstacles to that course of action, but there are not substantial legal obstacles.

I also want to note one point that I think Judge Garaufis just gets wrong. As an additional/alternative basis for concluding that the DACA rescission was arbitrary and capricious, he writes that the administration's decision to phase it out gradually belied the conclusion that it is unconstitutional. The judge writes: "If the DACA program was, in fact, unconstitutional, the court does not understand (nor have the Defendants explained) why Defendants would have authority to continue to violate the Constitution, albeit at a reduced scale and only for a limited time."

Really? How about Brown v. Board of Education II, in which the Supreme Court, having already concluded that de jure racial segregation in schools was unconstitutional, ordered the district courts to supervise a process during a "period of transition" in which desegregation was to be accomplished "with all deliberate speed"? That formula has been justifiably criticized as naively inviting foot-dragging, but the core authority of the Court to phase in constitutional remedies over time rather than all at once where other prudential factors exist remains intact.

Consider the Northern Pipeline case, in which the Supreme Court, having concluded that the existing jurisdiction of bankruptcy courts was unconstitutional, expressly stayed its judgment for over three months in order to give Congress time to work out a replacement system.

My favorite example of such a grace period is the Supreme Court of Canada's decision in the Manitoba Language Rights Case. Having found that nearly all of Manitoba's laws were unconstitutional because they had been promulgated in English but not also in French, the court nonetheless gave the provincial legislature a grace period to translate the laws, so as to avoid the "chaos" that would ensue from a legal vacuum.

Now it might be objected that courts have the prerogative of ordering gradual compliance but political actors do not. Such an objection strikes me as wrong, however.

Suppose that without any litigation, the Premier of Manitoba came to the (correct) conclusion that the province was violating the constitution by failing to publish its laws in an authoritative French version alongside the English version. Would he be obligated to cease enforcing all laws pending their translation? That's absurd. He would sensibly move as fast as possible to remedy the problem, meanwhile maintaining the laws in force. That is, he would adopt the same solution as the Supreme Court of Canada did. And there's nothing in that example that's inapplicable to the US.

Another example: US courts sometimes find that prison overcrowding violates the Eighth Amendment but that no immediate remedy is available. They then give prison officials a timetable for achieving constitutional compliance through a combination of prisoner release and prison construction. (The litigation over California that reached the Supreme Court in Brown v. Plata is a good example.) Suppose that through a combination of conscientiousness and fear of litigation, state or federal prison authorities determined that they needed to reduce the prison population and/or build new prisons in order to comply with the Eighth Amendment. Surely that judgment would be consistent with the adoption of an expeditious plan to evaluate prisoners for release suitability and to obtain legislative funding for prison construction. In other words, the fact that the state warden or federal Bureau of Prisons did not immediately release randomly selected prisoners willy-nilly would not in any way contradict the judgment that existing overcrowding is unconstitutional.

All of which is to say that if Trump and Sessions really were right in their conclusion that DACA was unconstitutional, it would be sensible, in light of the reliance interests of the DACA recipients, to wind the program down gradually rather than to rescind it immediately. So Judge Garaufis is wrong to think that the phase-out renders DACA rescission arbitrary and capricious. However, as that was offered as an alternative ground for the ruling, he still could be right in his bottom line.